Executive Branch

The Cohen Reimbursements and Retainers: Part II

Bob Bauer
Monday, May 7, 2018, 2:40 PM

On Friday, I wrote that Rudy Giuliani’s answer to the the campaign finance question arising out the Stormy Daniels payment made little sense. He asserted—wrongly—that, as a matter of law, the president’s belated reimbursement of his personal lawyer Michael Cohen “negated” any liability for an illegal contribution.

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On Friday, I wrote that Rudy Giuliani’s answer to the the campaign finance question arising out the Stormy Daniels payment made little sense. He asserted—wrongly—that, as a matter of law, the president’s belated reimbursement of his personal lawyer Michael Cohen “negated” any liability for an illegal contribution. Since then, Giuliani has issued a statement to clarify the president’s legal position on the $130,000 payment Michael Cohen made to Stormy Daniels and that, Giuliani says, the president reimbursed. He has now attempted to peg the Trump legal theory to the relevant campaign finance rule, contending that Trump would have made the payment even if there had been no presidential campaign: or to put it in the language of FEC regulations, he would have made the payment “irrespective of candidacy.” So Giuliani concludes that, for this reason, Cohen’s advance of the funds did not implicate the campaign finance laws: It was not an illegal contribution. He has now relegated the reimbursement to the status of a secondary defense in the event that this primary one fails.

The Giuliani statement on this point is more focused than the earlier version, and somewhat more coherent. But it remains a botched defense of the campaign finance issue. His explanations over several days still raise more questions than they answer, and they may point to other serious issues beyond campaign finance.

Giuliani’s reminted theory of the case has an additional hole in it. If Trump did not know of the payment until recently, then the only intent relevant to the legal issue is Cohen’s. Did Cohen make the arrangement in the days before the campaign to head off a major political problem? If he did, that would mean that the payment had not been made “irrespective of candidacy,” and the campaign finance rules—both contribution limits and reporting requirements—would apply. It is hard for Trump to argue that he was concerned about the effects on his family of any Daniels revelations if he had no idea at the time that she was about to go public with her story.

Of course, Trump and Cohen could be lying about the absence of any communication between them at the time about Daniels. But that is not their story—and if taken at face value, the story as they have told it means that Cohen’s intent is controlling. If there is evidence that Cohen consulted with the campaign before making the payment while saying nothing to Trump, then the personal motivation fades and the campaign purpose behind the payment surges decisively to the forefront of the case.

Trump might argue that Cohen had a standing agreement that he was to pay off any threat like the one posed by Daniels—from other women. Giuliani resisted going this far, saying on ABC’s “This Week” that Cohen would have paid off claims similar to Daniels’ on Trump’s behalf if it were “necessary,” but that he, Giuliani, did not know of any such other claims or practice. So his case for the president rests on this one payment within the context of an attorney-client relationship in which, without informing his client, Cohen could spend money to solve a problem for Trump and be reimbursed “sometimes.”

This leaves open the question of what Cohen thought his client’s interests required at the time of payment. And if the evidence shows that his purpose was to protect Trump’s campaign, then the campaign finance issue remains very much alive.

Speaking on “Meet the Press” on Sunday, Alan Dershowitz made an alternative case for treating the campaign finance issue as relatively insignificant. Dershowitz rightly criticizes the manner in which Giuliani has mounted his client’s defense—that is, in a series of interviews with regular corrections or clarifications. But he also argues that any campaign finance violation would not be “substantial” and the liability for a violation would fall on the campaign’s treasurer for failure to report the Daniels payment as a Cohen contribution to the Trump campaign.

When we do not have all the facts, it is not clear how Dershowitz can reasonably conclude, as he did on “Meet the Press,” that the case is a “close” one. But it is a mistake to assert that in the event that an illegal contribution was made, the treasurer—not candidate Trump—would have liability, and that the failure to report would be the only issue. Dershowitz seems to believe that the late reimbursement cured any illegal contribution—that is, a contribution that exceeded lawful dollar limits—that Cohen may have made by advancing the money for the Daniels payment. So Dershowitz imagines that if there was a violation, it is no more than a reporting issue, and the treasurer has to answer for it.

To the contrary, both Trump and Cohen would have exposure for this excessive and unreported contribution under both the civil and criminal standards for campaign finance law enforcement. To the extent that the treasurer would be involved, he or she would be cited only in an official capacity, as representative of the campaign committee, and would not have no personal liability for events of which he or she was not informed.

In his ABC interview on Sunday, Giuliani attempted to argue that those pressing the campaign finance issue are resisting his legal defense of Trump “because [Giuliani’s case] gets [Trump and Cohen] out of trouble and it makes the whole investigation and ... the tactics that we use by the prosecutors totally repugnant.” The campaign finance argument does a great deal of work in Giuliani’s picture of things: Supposedly, once the suggestion of a violation is refused, the predicate for the investigation—at least the Trump-Cohen aspect—has been eliminated.

But it is also possible that Trump and Cohen have conceived this argument to deflect attention from the unanswered questions about what else may be of concern in their relationship. Consider Giuliani’s claim that the payments made were not all for the purposes of playing off Daniels. He referred to “incidentals” plus some return to Cohen that significantly increased the amount reimbursed. This description is curious. It is meant to convey the notion that this additional money paid to Cohen was peripheral, and yet those payments ran into the hundreds of thousands of dollars—according to Giuliani, $460,000 to $470,000, or more than three times what was required to pay Daniels. Given that these sums are hardly “incidental,” it is a stretch for Giuliani to wrap them into references to the “reimbursement” related to Daniels and cloak them in the overall campaign finance narrative.

The New York Times reports that Michael Cohen’s finances are complex, and his business associations and practices are apparently a topic likely to be of intense interest to prosecutors. Some of that work involved ventures with Trump, such as the Moscow real estate venture in 2015 that Cohen sought to develop with the assistance of Felix Sater—a former business associate of Trump with a criminal history and murky involvement in Russia-related matters, who famously told Cohen in an email that their work could help get Trump elected to the presidency. If Trump was paying Cohen significant sums of money through 2017 and 2018, in the middle of the Mueller investigation, and supposedly had an understanding that Cohen could bill him “on retainer” for whatever he thought needed to be done on the president’s behalf, campaign finance may well not have been the chief concern behind those payments. The campaign finance argument, weak as it is, may be just the best his legal team can do on the facts they have—or it may be largely a cover story, with the real tale even more problematic for the president.

Giuliani declines to say when Trump knew the purpose of the payments and authorized the reimbursements, or even the period over which the installments were paid. This is an important point, and yet Giuliani continues to waffle on the answer. The issue of timing may shed light on Trump’s motivations for the payments. And Giuliani has argued that Cohen was “sometimes” paid for his help to Trump, and sometimes not: In the Daniels matter, the help was not forthcoming immediately, but much later. What prompted Trump to begin paying? And when did he begin doing so?

Giuliani has also not explained why Trump made the repayment in installments. If the purpose of paying Cohen was to dispose of any issue of a campaign finance violation, then it is difficult to understand why the self-described billionaire—whom Giuliani described as unconcerned with a payment as small as $130,000—broke the payment out over several months. Again, the argument that reimbursement would resolve the legal issue makes little sense. But even if we accept it at face value, each month that the Cohen payment was not fully reimbursed, the amounts unpaid would constitute a continuing legal issue. One could see the installments as one way that the president could keep Cohen’s attention, stringing out the reimbursement to keep Cohen close.

To be sure, this is speculation. But the multiple confused and incomplete accounts provided by Giuliani invite some effort to make some sense of of what he has had to say in this subject. And Giuliani must surely have expected rigorous scrutiny of his answers in view of the earlier denials by Cohen that he was acting on behalf of the president or that Trump paid him to do so, and by Trump that he knew anything about Cohen’s efforts for his benefit.

As for the question of keeping Cohen close, it should not be overlooked that Giuliani, questioned about a pardon, refused to rule it out. “That’s not a decision to be made now,” he told George Stephanopoulos. There’s no reason to pardon anybody now.” He ended each of these sentences with a hedge—for “now.”

Bob Bauer served as White House Counsel to President Obama. In 2013, the President named Bob to be Co-Chair of the Presidential Commission on Election Administration. He is a Professor of Practice and Distinguished Scholar in Residence at New York University School of Law, as well as the co-director of the university's Legislative and Regulatory Process Clinic. In 2020, he served as a senior advisor to the Biden campaign.

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